United States v. Armendariz

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
November 28, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50812
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO ARMENDARIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-269-ALL-PRM)
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Ricardo Armendariz pleaded guilty to the
first and second counts of an indictment charging him with
importation of a controlled substance and possession of a
controlled substance. The probation officer determined that
Armendariz was a career offender for purposes of U.S.S.G. §
4B1.1(a) & (b) (2003). Armendariz’s objection, based on Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), was overruled,
and he was sentenced to concurrent 84-month terms of imprisonment
as well as concurrent four-year periods of supervised release.

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2
After Armendarez filed his initial brief but before the
government submitted its brief, the Supreme Court issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005),
applying its Sixth Amendment holding in Blakely to the United
States Sentencing Guidelines (“U.S.S.G.”). Armendariz contends
that, under Blakely and Booker, the district court erred by
increasing his guideline sentencing range on the basis of facts
neither admitted by him as part of his guilty plea nor found by a
jury beyond a reasonable doubt. Armendariz argues that, in
determining that he was a “career offender,” the district court was
required to find that: (1) he was at least 18 years old at the time
of the instant offense; and (2) he had at least two prior
controlled-substance convictions.
Although Armendariz preserved error as to the determination of
the first of these facts, any error in determining that Armendariz
was older than 18 at the time of the instant offense was harmless.
See United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005)
(indicating that factual question of defendant’s age implicates
rule in Booker); see also United States v. Piniero, 410 F.3d 282,
284–85 (5th Cir. 2005) (reviewing Booker issue for harmless error).
Armendariz admitted at the change-of-plea hearing, on March 24,
2004, that he was 41 years old. The instant offense was committed
on January 16, 2004. Armendariz necessarily had to have been older
than 18 years old on that date.

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3
Armendariz did not preserve error as to the question whether
the district court erred in finding that his predicate convictions
were controlled-substance offenses. Even if we assume arguendo
that the district court plainly erred in making this determination,
see Guevara, 408 F.3d at 261 (question is undecided), Armendariz
cannot show that his substantial rights were affected: The record
contains no indication whatsoever that the district court would
have sentenced Armendariz differently under an advisory sentencing
scheme. See United States v. Mares, 402 F.3d 511, 521 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005). The judgment of the district
court is, in all respects,
AFFIRMED.

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